Lawyers Manual - Unified Court System

The Law Regarding Child Welfare and Domestic Violence
6
Representing Domestic Violence Victims in
Child Welfare Cases
by Jill M. Zuccardy
For domestic violence victims who face child neglect proceedings, the
Court of Appeals decision in Nicholson v Scoppetta1 changed radically the legal
landscape in which they defend themselves against charges that they have failed
to protect their children from harm. Prior to 2004, the decisions of the different
appellate divisions regarding issues of domestic violence in child welfare cases
could not be harmonized. The confusion traced its origins to the 1998 decision
in In re Lonell J., 2 in which the Appellate Division, First Department, held that
expert testimony is not necessary to establish that exposure to domestic violence
causes harm to children rising to the level of impairment under the statute
governing child neglect. Some, but not all, lower courts seemed to interpret In
re Lonell J. as holding that a child who witnesses domestic violence per se
suffers harm sufficient to support a finding of neglect against the victim-parent
as well the perpetrator-parent. 3
In October, 2004, the New York Court of Appeals issued its landmark
decision in Nicholson v Scoppetta. 4 The Court held that a parent may not be
charged with neglect solely on the grounds that the parent is a victim of domestic
violence and the child has been exposed to the violence. The Court also held
that a presumption of emotional harm is impermissible by law because not every
child exposed to domestic violence suffers harm or even a risk of harm as
defined by the neglect statute. The Court made clear that In re Lonell J. stood
only for the proposition that expert testimony is not required to prove that a
child exposed to domestic violence has suffered harm under the statute but that
it did not dispose with the requirement that emotional harm be proven.
The Court further emphasized that even if emotional harm to a child from
exposure to domestic violence is proven by particularized evidence, a battered